Anthony Kennedy on Foreign Policy

Supreme Court Justice (nominated by Pres. Reagan 1988)

Using foreign law is inevitable with an interconnected world

It really began with the Holocaust, when international law started to concern itself with how nations treated their own citizens. Country A is concerned with how Country B treats its own citizens. So you had the beginnings of things like the
European Court of Human Rights. They became the new kids on the block, but no one really knew what they did. Gradually, their work started to become known around the world. Then you started to have formal exchanges of judges.

Vienna Convention treaty not binding on US courts.

After his conviction for murder, Mexican citizen Jose Medellin argued on appeal that police should have complied with the Vienna Convention and asked if he wanted his consulate notified of his arrest. Texas courts held that Medellin should have made this argument before trial. Separately, the UN's International Court of Justice heard a case involving Medellin, brought by Mexico against the US, on failure to comply with the Convention. The ICJ held that Texas courts must provide Medellin with hearings on the issue.

The Vienna Convention was not "self-executing" but required further federal law for it to be binding upon US courts. The ICJ decision, further, was not binding on domestic courts since the country's obligations

was only to defend the case, not abide by an ICJ judgment, and

under the UN charter was only to "undertake to comply" with ICJ decisions.

Mexico was the party before the ICJ, not Medellin, and he gained no personal rights from the ICJ ruling. Pres. Bush wrote that state courts should give effect to the Convention did not bind those courts, because the Constitution does not grant him this power without Senate consent.

CONCURRED: Stevens concurs

The language of the UN Charter about a nation's obligation to heed an ICJ decision is too vague to be binding upon domestic courts.

DISSENT: Filed by Breyer; joined by Souter & Ginsburg

Standards for self-execution cannot be made clear in multilateral treaties since each country has its legal traditions for treaties. However, since the Vienna convention concerns an individual right AND the Supremacy Clause subjugates domestic law to treaties AND the ICJ asked Texas courts to hold a hearing on a legal issue AND the President favors this and Congress does not oppose it, the Supreme Court ought to enforce the ICJ decision.